G.R. No. 181295 – HARLIN CASTILLO
ABAYON, Petitioner, versus COMMISSION ON ELECTIONS and RAUL DAZA, Respondents.
Promulgated:
April
2, 2009
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DISSENTING OPINION
NACHURA, J.:
With due respect, I am constrained to
register my dissent because I earnestly believe that the ponencia would validate serious statutory and procedural errors
committed by the Commission on Elections (COMELEC).
Factual and Procedural Antecedents
To
appreciate the full panoply of events that gave rise to this controversy, it is
necessary to recall the following undisputed relevant facts and proceedings:
After
the May 14, 2007 elections for Provincial Governor in
1. On May 19, 2007, a petition docketed as SPC No. 07-037, denominated “In the Matter of the Petition to Exclude
the Certificate of Canvass (COC) of the Municipalities of Capul, Rosario and
Bobon—All in the Province of Northern Samar which Were Prepared Under Duress,
Threats and Intimidation”;
2. On May 21, 2007, three (3) petitions, as
follows:
a) SPC No.
07-069, entitled “Petition to Exclude Certificate of Canvass
(COC) of
b) SPC No.
07-070, captioned “In the Matter of the Petition To Declare
the Proclamation of Private Respondent as Winning Candidate for the Position of
Governor of Northern Samar Null and Void” (because on May 20, 2007, without any action having been taken on SPC
No. 07-037, the Provincial Board of Canvassers proclaimed Daza as the winner in
the gubernatorial race);
c) SPA No.
07-460, designated
“In the Matter of the Petition for
Declaration of Failure of Elections In the Municipalities of Capul, Rosario and
Bobon, all of
3. On May 24, 2007, the fifth petition docketed as
SPC No. 07-484, entitled “In the Matter of the Petition To Declare
Failure of Election in the Municipality of Catubig, Northern Samar, and for the
Holding of Special Elections Thereof”.
No action was taken by the COMELEC on
all the petitions until June 28, 2007, when it issued Omnibus Resolution No. 8212 that
dismissed all pending pre-proclamation cases, except those included in the list
attached to the resolution. This was
promulgated pursuant to Section 16 of Republic Act (R.A.) No. 7166 which reads:
Section 16. Pre-proclamation Cases Involving Provincial, City and Municipal Offices. Pre-proclamation cases involving provincial, city and municipal offices shall be allowed and shall be governed by Sections 17, 18, 19, 20, 21 and 22 hereof. All pre-proclamation cases pending before the Commission shall be deemed terminated at the beginning of the term of office involved and the rulings of the boards of canvassers concerned shall be deemed affirmed, without prejudice to the filing of a regular election protest. However, proceedings may continue when on the basis of the evidence thus far presented, the Commission determines that the petition appears meritorious and accordingly issues an order for the proceeding to continue or when an appropriate order has been issued by the Supreme Court in a petition for certiorari. (Emphasis supplied.)
Parenthetically, it is curious that,
despite the fact that the Abayon petitions were not in the list of cases that
would remain active beyond June 30, 2007, the COMELEC Second Division, in an Order
dated July 2, 2007, acted on, and denied SPC No. 07-069; while the COMELEC
En Banc, in an Order dated July 9, 2007, denied SPC No. 07-484. Both cases were resolved by the COMELEC
beyond June 28, 2007, even if SPC No. 07-069 was presumably a pre-proclamation
case that was terminated by virtue of Omnibus Resolution No. 8212.
On June 29, 2007, Abayon filed his Election Protest, docketed
as EPC No. 2007-62. This was dismissed by the COMELEC First
Division in an Order dated October
8, 2007, on the ground that it was filed out of time — the
same having been filed beyond the prescribed ten-day period from Daza’s
proclamation. The COMELEC First Division
ratiocinated that the filing by Abayon of his pre-proclamation petitions did
not interrupt the running of the ten-day period, because the petitions did not
raise valid pre-proclamation issues.
On October 10, 2007, Abayon filed a
Motion for Reconsideration which the COMELEC En Banc denied in a Resolution
dated January 28, 2008, premised on the very same reasons as those tendered by
the First Division. Thus, the instant
petition.
The Reasons for the Dissent
The
majority would uphold the action of the COMELEC (First Division and En Banc)
dismissing Abayon’s Election Protest. To
my mind, the fault of the ponencia
lies in its having oversimplified the main issue in the controversy, asking
only “whether this Court should allow a pre-proclamation case which is patently
without merit to interrupt the period for filing an election protest.” By engaging simply in a general and
superficial inquiry, limited to this rhetorical issue, the majority may have
been induced to close its eyes to grave lapses committed by the COMELEC, lapses
which translate to transgressions of election law and jurisprudence.
Let
me now enumerate and explain the particular reasons for my dissent.
1.
The proclamation of Daza as elected
Governor on May 20, 2007 violated
Section 20 of R.A. No. 7166.
On
May 20, 2007, when Daza was proclaimed as Governor by the Provincial Board of
Canvassers of Northern Samar, Abayon had already filed the day before, or on
May 19, 2007, his petition in SPC No. 07-037, entitled, “In the Matter of the Petition to Exclude the Certificates of Canvass
(COC) of the Municipalities of Capul, Rosario and Bobon—All in the Province of
Northern Samar, Which Were Prepared Under Duress, Threats and Intimidation.”
On
the face of the petition, even by its caption alone, Abayon had filed a
pre-proclamation contest, raising an issue compliant with Section 243[1] of
the Omnibus Election Code (OEC), namely that the certificates of canvass for
the municipalities mentioned “were prepared under duress, threats and
intimidation”, clearly within the ambit of paragraph (c) of Section 243. Accordingly, Section 20, R.A. No. 7166,
specifically paragraph (i) thereof, which provides:
Section 20.
Procedure in Disposition of Contested Election Returns. –
x x x
(i) The board of
canvassers shall not proclaim any candidate or winner unless authorized by the
Commission after the latter has ruled on the objection brought to it on appeal
by the losing party. Any proclamation
made in violation hereof shall be void ab
initio, unless the contested returns will not adversely affect the results
of the election. (Emphasis
supplied.)
should have taken effect
automatically.
The
COMELEC did not grant the provincial board of canvassers of
It
may be argued—as, in fact, the entire
hypothesis of the COMELEC ruling is anchored on this argument—that the pre-proclamation petition of
Abayon did not raise valid pre-proclamation issues and, therefore, Section 20
of R.A. No. 7166, would not apply. The fallacy of this argument is immediately
evident. The argument would, in effect,
place the cart before the horse.
It should be stressed that when Daza was
proclaimed, there was already a pending petition characterized as a
pre-proclamation contest, alleging that certificates of canvass (COCs) from
three municipalities were prepared under duress, threat and intimidation. As of that moment, and for over a month
thereafter, there was no COMELEC resolution on the merits of the petition. (In fact, no independent resolution of the
case was ever made by the COMELEC, as will be discussed below.) Absent a definitive ruling by the COMELEC,
the pre-proclamation contest subsisted.
At that point, there arose a situation falling squarely within the
coverage, and calling for the immediate application, of Section 20(i) of R.A. No.
7166.
The
nullity of the premature proclamation should not be made to rest on the outcome
of the pre-proclamation controversy. A
contrary view would subvert the underlying policy consideration for the
institution of the pre-proclamation contest as an efficacious and speedy
remedy. It should be remembered that the
statutory provisions on pre-proclamation controversies were legislated in order
to prevent the nefarious practice known as “grab-the-proclamation,
prolong-the-protest”. The salutary legislative objective would be negated if
the precipitate proclamation is allowed to stand, made to await the resolution
of the pre-proclamation contest.
Significantly,
with Daza’s proclamation being null and void by operation of the law, the
ten-day period (for filing an election protest) did not commence to run on the
date of the proclamation, as there would have been no proclamation to speak of
in the first place.
2. Abayon’s filing of the petition
in SPC No. 07-070 effectively
suspended the running of the
period to file an election protest.
On
May 21, 2007, the day following Daza’s proclamation, Abayon filed with the
COMELEC a petition, docketed as SPC No. 07-070, denominated, “In the Matter of the Petition to Declare
the Proclamation of Private Respondent as Winning Candidate for the Position of
Governor of Northern Samar Null and Void.”
When
Abayon filed that petition with the COMELEC, Section 248 of the Omnibus
Election Code, which provides:
Section 248. Effect of filing petition to annul or to suspend proclamation. – The filing with the Commission of a petition to annul or suspend the proclamation of any candidate shall suspend the running of the period within which to file an election protest or quo warranto petition. (Emphasis supplied.)
automatically came into force and
effect. The period to file an election
protest would only commence to run after the petition to annul the proclamation
had been finally resolved by the COMELEC, or in certain instances, by this
Court. This is so because the language of
Section 248 is direct, positive and mandatory.
It brooks no exception. The Court emphasized this resultant operation of
Section 248 on the ten-day prescriptive period for the filing of election
protest in Manahan v. Bernardo,[4] Roquero v. Commission on Elections,[5]
and, recently, in Tan v. Commission on
Elections,[6] in which
it was further explained thus:
As may be noted, the aforequoted Section 248 contemplates two (2) points of reference, that is, pre- and post-proclamation, under which either of the petitions referred to therein is filed. Before the proclamation, what ought to be filed is a petition to “suspend” or stop an impending proclamation. After the proclamation, an adverse party should file a petition to “annul” or undo a proclamation made. Pre-proclamation controversies partake of the nature of petitions to suspend. The purpose for allowing pre-proclamation controversies, the filing of which is covered by the aforequoted Section 248 of the Omnibus Election Code, is to nip in the bud the occurrence of what, in election practice, is referred to as “grab the proclamation and prolong the protest” situation.
Correlating the petitions mentioned in Section 248 with the 10-day period set forth in the succeeding Section 250, a petition to suspend tolls the 10-day period for filing an election protest from running, while a petition to annul interrupts the running of the period. In other words, in a Section 248 petition to suspend where the 10-day period did not start to run at all, the filing of a Section 250 election contest after the tenth (10th) day from proclamation is not late. On the other hand, in a Section 248 petition to annul, the party seeking annulment must file the petition before the expiration of the 10-day period.[7]
It
should be noted here that SPC No. 07-070, the petition to annul, was not
independently resolved by the COMELEC. By inference, however, it may be
acknowledged that the case was deemed decided when COMELEC issued Omnibus Resolution No. 8212 on June 28,
2007, dismissing all pending pre-proclamation cases except those covered by
an appropriate order of the COMELEC or this Court. As aforesaid, the said
omnibus resolution was promulgated pursuant to Section 16 of R.A. No. 7166.
Given
the factual setting of this case, and applying Section 248 of the Omnibus Election
Code and Section 16 of R.A. No. 7166, the ineluctable conclusion is that the
Election Protest, EPC No. 2007-62, filed by Abayon on June 29, 2007, was not
filed out of time. For emphasis, let
me reiterate the following facts that support this conclusion:
a)
On May 21, 2007, one day after Daza’s proclamation, Abayon filed SPC No.
07-070, seeking to annul the Daza proclamation.
By the express mandate of Section 248 of the Omnibus Election Code, the
filing of that petition suspended the running of the period to file an election
protest.
b)
Because it was not in the list of active cases that would survive the
beginning of the term of office involved, SPC No. 07-070 was dismissed and
deemed terminated by COMELEC Omnibus Resolution No. 8212, dated June 28, 2007. Since Section 16 of R.A. No. 7166, explicitly
states that the dismissal or termination of such case(s) is “without prejudice to the filing of a
regular election protest,” it is obvious that the period within which to
file an election protest would commence to run only on June 28, 2007, the date
when the case was dismissed or deemed terminated.
c) Abayon filed his
Election Protest on June 29, 2007, the day following the promulgation of
Omnibus Resolution No. 8212.
Unmistakably, it was filed within the prescribed ten-day period which
commenced to run only on June 28, 2007.
In Peñaflorida v. Commission on Elections,[8]
this Court explained the rationale for Section 16 of R.A. No. 7166, and warned
against the indiscriminate filing of pre-proclamation cases that could unduly
delay proclamation and prejudice winning candidates. Thus, the Court justified
the dismissal or termination of pending pre-proclamation cases upon the
beginning of the term of the contested office, even through an Omnibus
Resolution that did not particularly designate the cases affected thereby.
Under the Local Government
Code, the term of office of elective provincial officials begins at noon of
June 30 following the election. Admittedly,
by virtue of Section 16 of R.A. No. 7166, it was proper for the COMELEC, on
June 28, 2007—two days before the beginning of the term of office of elective
local officials—to issue Omnibus Resolution No. 8212 terminating all pending
pre-proclamation cases (except those in the list of cases which remained active
beyond June 30, 2007). This is precisely because the filing of the pre-proclamation
cases suspended the proclamation of candidates, following Section 20(i) of R.A.
No. 7166, and, unless the several pre-proclamation controversies were
terminated, the result would be that many offices would have no incumbents.[9]
Noteworthy is that Omnibus Resolution No. 8212 provides that “x x x all the
rulings of boards of canvassers concerned are deemed affirmed. Such boards of canvassers are directed to
reconvene forthwith, continue their respective canvass and proclaim the winning
candidates accordingly, if the proceedings were suspended by virtue of pending
pre-proclamation cases.”
It, therefore, stands to
reason that the Abayon petitions in SPC No. 07-037 and SPC No. 07-070 were
dismissed only on July 28, 2007 when the Omnibus Resolution was promulgated,
since the COMELEC did not make any independent resolution of these cases.
Inasmuch as Section 16 of
R.A. No. 7166, is the statutory authority for the Omnibus Resolution which
effected the dismissal en masse of
pending pre-proclamation cases—and the Abayon petitions were lumped up in this
mass of cases—then Section 16 should be implemented to the fullest. Accordingly, Abayon cannot be denied the
benefit of the same Section 16, which provides that the termination of the
cases is “without prejudice to the filing of a regular election protest.” The
law was worded as such precisely because the legislature was aware that the
filing of a pre-proclamation case would effectively suspend the proclamation
and the institution of election protest.
To rule that Abayon
cannot avail of this recourse (ostensibly on the ground that his petitions did
not raise valid pre-proclamation issues, when the COMELEC did not say as much
in its Omnibus Resolution), would be to countenance selective law enforcement. It would deprive Abayon of his constitutional
right to equal protection of the laws.
The
statutory provisions cited above notwithstanding, the ponencia echoes the COMELEC’s reliance in Dagloc v. COMELEC[10]
and Villamor v. COMELEC,[11] in which this Court held that not all
so-called pre-proclamation petitions will work to suspend the ten-day period
for the filing of an election protest.
These cases are cited, even as
the COMELEC itself confesses that the facts in Dagloc and Villamor “are
not on all fours to (sic) the instant controversy.”[12]
Indeed,
Dagloc is inapplicable, because the
petition filed therein was a petition to declare failure of election, not a
pre-proclamation contest. Neither can Villamor validly serve as precedent,
because in that case, the petition to annul proclamation was premised on the
illegal composition and proceedings of the board of canvassers. Unlike in the present case, there were no
election returns or certificates of canvass to examine for their authenticity
and due execution. And Section 20 of
R.A. No. 7166, precisely governs the situations contemplated in Section 243
(b), (c) and (d) of the OEC, which relate to the preparation, transmission,
receipt, custody and appreciation of election returns.[13]
3. This Court cannot rule on the
validity of the Abayon petitions in
SPC No. 07-037 and SPC No. 07-070.
To repeat, SPC No. 07-037 and SPC No. 07-070 were not decided
by the COMELEC in an independent or separate resolution. The cases were lumped up with other
pre-proclamation cases, and resolved en
masse through Omnibus Resolution No. 8212.
Surprisingly, in its Order dated October 8, 2007, in EPC No. 2007-62
(the Election Protest), the COMELEC’s First Division discussed the merits of
SPC No. 07-037, and concluded that the allegations therein were not proper
issues to be raised in a pre-proclamation contest. This conclusion was then used as the basis to
dismiss EPC No. 2007-62, on the premise that since SPC No. 07-037 did not raise
valid pre-proclamation issues, it did not suspend the running of the ten-day
period within which to file an election protest.
I am not aware of any legal or procedural rule that would
justify the COMELEC First Division’s action in deciding the merits of SPC No.
07-037 in its Order in EPC No. 2007-62, considering that the two were separate
and independent cases, were never consolidated, and were anchored on different
causes of action.
Now,
the ponencia validates this dubious
legerdemain, and compounding the procedural mix-up, this Court is made to rule
on the merits of SPC Nos. 07-037 and 07-070.
I feel compelled to express serious reservations about this course of
action.
Exclusive original jurisdiction over
pre-proclamation cases is vested in the COMELEC.[14] This Court may only exercise certiorari jurisdiction over COMELEC
decisions, orders or rulings in these cases.[15] Since no petition for certiorari has been filed with this Court in connection with SPC Nos.
07-037 and 07-070, we are without competence to rule on the petitions in these
cases.
4. Questions regarding the election
of a provincial governor should not
be resolved by resort to technicalities.
In
the instant case, it is noteworthy that Daza, in his original answer to the
Election Protest, also filed a counter-protest against Abayon. Obviously, each camp charges the other of
irregularities in the election.
The greater public interest, in
keeping with our democratic tradition, would best be served by a no-nonsense
determination of the true will of the people of
On a more practical note, such a
remand will not inflict any real damage to Daza who shall, for the duration of
the proceedings, continue to hold office as Provincial Governor. Indeed, it will serve him in good stead, as
the full resolution of the election protest would clear any cloud of doubt over
the legitimacy of his election.
The case should not therefore hang in
the balance of technical rules of procedure. An election contest, unlike an
ordinary action, is imbued with public interest, involving as it does not only
the adjudication of the private interests of rival candidates but also the
paramount need of dispelling the uncertainty which beclouds the real choice of
the electorate. Neither it is fair nor just to keep in office for an uncertain
period one whose right to it is under suspicion. Imperative indeed is that that
his claim be immediately cleared, not only for the benefit of the winner but
for the sake of public interest, which can only be achieved by brushing aside
technicalities of procedure.[16]
In light of all the foregoing, I vote
to grant the petition.
ANTONIO
EDUARDO B. NACHURA
Associate
Justice
[1] Section
243 of the OEC reads in full:
“SEC.
243. Issues that may be raised in
pre-proclamation controversy—The following shall be proper issues that may
be raised in a pre-proclamation controversy:
“(a)
Illegal composition or proceeding of the board of canvassers;
“(b)
The canvassed election returns are incomplete, contain material defects, appear
to be tampered with or falsified, or contain discrepancies in the same returns
or in other authentic copies thereof as mentioned in Sections 233, 234, 235,
and 236 of this Code;
“(c)
The election returns were prepared under duress, threats, coercion, or
intimidation, or they are obviously manufactured or not authentic; and
“(d)
When substitute or fraudulent returns in controverted polling places were
canvassed, the results of which materially affected the standing of the
aggrieved candidate or candidates.”
[2] Jamil v. Commission on
Elections, 347
Phil. 630, 649-650 (1997). While this case applied Section 245 of the OEC,
which was already repealed by R.A. No. 7166, the doctrine which prohibits the
Board of Canvassers from proclaiming a candidate as winner when returns are
contested, unless authorized by the COMELEC, is still a good law. This is
precisely because Section 20(i) of R.A. No. 7166 enunciates the same rule as
Section 245 of the OEC.
[3] 426 Phil. 225, 240-241 (2002).
[4] 347 Phil. 782, 788-789 (1997).
[5] 351 Phil. 1079, 1086 (1998).
[6] G.R. Nos. 166143-47 and 166891, November 20, 2006, 507 SCRA 352, 384.
[7] Emphasis supplied.
[8] 346
Phil. 924, 930 (1997).
[9] Peñaflorida v.
Commission on Elections, id.
[10] 378
Phil. 906 (1999).
[11] G.R.
No. 169865, July 21, 2006, 496 SCRA 334.
[12] Rollo, p. 52.
[13] Section 241 of the OEC.
[14] Section 242 of the OEC.
[15] 1987 Constitution, Article IX-A, Section 7.
[16] Barroso
v. Ampig, 385 Phil. 237, 249 (2000).